Case Note & Summary
The case involves a second appeal before the High Court of Bombay at Goa arising from a property dispute. The appellants (defendants) challenged the judgment of the First Appellate Court which had decreed a permanent injunction in favor of the respondent (plaintiff) in respect of property survey no. 59/1. The plaintiff had originally filed a suit claiming that properties surveyed under nos. 59/1 and 59/2 were a single property and sought an injunction against the defendants. The trial court dismissed the suit, but the First Appellate Court reversed the decision and granted the injunction. The High Court admitted the second appeal on two substantial questions of law: (1) whether the evidence of PW.1, who was a power of attorney holder and admitted that he had not read the plaint and derived information from his father, could be accepted as it was hearsay; and (2) whether the First Appellate Court could grant an injunction in respect of property no. 59/1 when the plaintiff had failed in respect of property no. 59/2 and had pleaded that both properties were a single property. The High Court, after hearing the parties, allowed the appeal, setting aside the judgment of the First Appellate Court and restoring the trial court's dismissal of the suit. The court held that the evidence of PW.1 was indeed hearsay and could not be relied upon, and that the plaintiff's inconsistent pleadings regarding the properties prevented the grant of an injunction.
Headnote
A) Civil Procedure - Power of Attorney Holder - Evidence - Hearsay - The evidence of a power of attorney holder who had not read the plaint and derived information from his father was held to be hearsay and inadmissible. (Paras 2, 3)
B) Civil Procedure - Injunction - Inconsistent Pleadings - When plaintiff claimed that properties surveyed under nos. 59/1 and 59/2 were a single property but failed in respect of property no. 59/2, the First Appellate Court could not grant injunction in respect of property no. 59/1 alone. (Paras 2, 3)
Issue of Consideration
Whether evidence of PW.1 (power of attorney holder) could be accepted when it was hearsay, and whether the First Appellate Court could grant injunction in respect of property no. 59/1 when plaintiff failed in respect of property no. 59/2 and claimed they were a single property.
Final Decision
The appeal is allowed. The judgment of the First Appellate Court is set aside and that of the trial court dismissing the suit is restored.
Law Points
- Hearsay evidence
- Power of attorney holder testimony
- Injunction decree
- Inconsistent pleadings
- Substantial question of law
Case Details
Second Appeal No.102/2008
Mr. Sudesh Usgaonkar, Ms. R. Pereira, Mr. V. A. Lawande, Ms. P. Kaur
Satu B. Gaonkar, Fondu F. Gaonkar, Ram V. Gaonkar, Arjun Janu Gaonkar, Punum B. Gaonkar, Janu B. Gaonkar (deleted), Kusta L. Gaonkar
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Nature of Litigation
Second appeal against judgment of First Appellate Court granting permanent injunction in property dispute.
Remedy Sought
Appellants sought setting aside of the First Appellate Court's decree granting injunction in favor of respondent.
Filing Reason
Appellants challenged the First Appellate Court's judgment on grounds that evidence of PW.1 was hearsay and that injunction was granted inconsistently with pleadings.
Previous Decisions
Trial court dismissed the suit; First Appellate Court reversed and decreed injunction in respect of property no. 59/1.
Issues
Whether evidence of PW.1 (power of attorney holder) could be accepted when it was hearsay.
Whether the First Appellate Court could grant injunction in respect of property no. 59/1 when plaintiff failed in respect of property no. 59/2 and claimed they were a single property.
Submissions/Arguments
Appellants argued that PW.1's evidence was hearsay as he had not read the plaint and derived information from his father.
Appellants argued that plaintiff's case was that properties 59/1 and 59/2 were a single property, and having failed in respect of 59/2, injunction could not be granted for 59/1 alone.
Ratio Decidendi
Evidence of a power of attorney holder who has no personal knowledge and derives information from others is hearsay and inadmissible. An injunction cannot be granted on inconsistent pleadings where plaintiff fails to prove part of the property claimed to be a single unit.
Judgment Excerpts
Whether evidence of PW. 1 could have been accepted particularly when he claims to be a holder of power of attorney and had stated that he had not read the contents of the plaint and he had got the information from his father and therefore, his evidence was hearsay?
Whether the First Appellate Court could have proceeded to decree the claim when plaintiff had come out with a case that properties surveyed under nos. 59/1 and 59/2 were single property and when plaintiff had failed in respect of property no. 59/2, and therefore whether the injunction could have been granted in property no. 59/1?
Procedural History
The plaintiff filed a suit for permanent injunction in the trial court, which was dismissed. The plaintiff appealed to the First Appellate Court, which allowed the appeal and granted the injunction. The defendants then filed the present second appeal, which was admitted on 19th March 2009 on two substantial questions of law. The High Court heard the appeal and delivered judgment on 5th February 2016.
